Opinion
May 15, 2000.
KINDLON SHANKS, P. C. (TERENCE L. KINDLON of counsel), for defendant.
KENNETH R. BRUNO, District Attorney of Rensselaer County (JOEL E. ABELOVE of counsel), for plaintiff.
DECISION AND ORDER
The defendant has moved to dismiss the indictment pursuant to CPL 210.25 (3) based upon the allegation that the statute defining the offense is unconstitutional. Specifically, the defendant alleges that Section 353-a Agric. Mkts. of the Agriculture and Markets Law is unconstitutionally vague and overbroad, and, therefore, violates the due process provisions of the United States Constitution and the New York State Constitution.
The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357;People v. Bright, 71 N.Y.2d 376, 382. A penal law statute must be sufficiently definite by its terms so as "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" (United States v. Harriss, 347 U.S. 612, 617; People v. Bright, supra, 382). The requirement that a penal law not permit arbitrary or discriminatory enforcement is, perhaps, the more important aspect of the vagueness doctrine (Kolender v. Lawson, supra, 358; People v. Bright, supra, 383).
To prevail on this claim, defendant must overcome the strong presumption of constitutionality which attaches to legislative enactments (People v. Smith, 63 N.Y.2d 41, 71; People v. Davis, 43 N.Y.2d 17, 30). This "weighty presumptive validity . . . is overborne only when the law is demonstrated to be invalid beyond a reasonable doubt (Matter of VanBerkel v. Power, 16 N.Y.2d 37, 40)." People v. Lang, 36 N.Y.2d 366, 370.
Turning to the specific language of the statute, Section 353-a Agric. Mkts. of the Agriculture and Markets Law provides that
"A person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty. For purposes of this section, 'aggravated cruelty' shall mean conduct which (i) is intended to cause extreme physical pain or (ii) which is done or carried out in an especially depraved or sadistic manner".
The purpose of the statute was to provide stricter penalties for the most egregious animal abuse cases (Memorandum in Support, New York State Assembly A-755). The law, known as "Buster's Law", was named after a Schenectady cat that was doused with kerosene and set on fire. It was also noted in the governor's message that such egregious animal abuse was not isolated since other defenseless animals had been thrown from windows, used for target practice, subjected to hangings and starvation (Governor's Message A.341).
Prior to the enactment of Section 353-a Agric. Mkts. of the Agriculture and Markets Law the only law punishing animal cruelty was the misdemeanor charge of Section 353 Agric. Mkts. of the Agriculture and Markets Law. In relevant part, the statute provided that:
"A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiable injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a misdemeanor. . . ."
Section 350 (2) of the Agriculture and Markets Law defines torture or cruelty to include "every act, omission, or neglect, whereby unjustifiable physical pain, suffering or death is caused or permitted".
The defendant asserts that while the phrase "aggravated cruelty" is defined within Section 353-a, the phrase is still impermissibly vague because terms within the definition are undefined. The phrase "extreme physical pain" is not defined or the meaning of "especially depraved or sadistic manner".
Where a statutory term is not defined in the statute itself, the common meaning of the term is to be applied (see, McKinney's Cons Laws of N.Y., Book 1, Statutes Section 232; Matter of Vernon Woods Development Corp. v. Pucillo, 134 A.D.2d 597 (2d Dept. 1987)). Unskilled draftsmanship alone is no ground for declaring a statute void, and if an intent can be spelled out fairly from the words used, effect will be given to that intent, although such intent is not artistically expressed (see, McKinney's Cons Laws of N.Y., Book 1, Statutes Section 361).
Failure to define every word in a criminal statute does not make the statute unconstitutionally vague (see, People v. Nelson, 69 N.Y.2d 302, where the Court of Appeals held that the jostling statute, Penal Law Section 165.25, was not void for vagueness even though the terms "unnecessarily" or "proximity" were not defined; People v. Bergerson, 17 N.Y.2d 398, where the Court of Appeals held that former Penal Law Section 483 (2) [now Section 260.10 Endangering the Welfare of a Child] was not unconstitutionally vague even though the language of the statute, "endangering of the life, limb, health or morals of a child", was not specifically defined; People v. Miller, 106 A.D.2d 787 (3d Dept. 1984), finding that the promoting prison contraband statute, Penal Law Section 205.25, not to be unconstitutionally vague;People v. Ali, 144 Misc.2d 543, finding current Penal Law Section 260.10 not to be unconstitutionally vague; People v. Gordon, 107 Misc.2d 248, where the definition of physical injury set forth in Penal Law Section 10.00 (9) was not unconstitutionally vague even though the term "substantial pain" was not defined). The Constitution does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding (People v. Byron, 17 N.Y.2d 64, 67)
In addition to being vague for failure to define the above terms, defendant also asserts that the definition set forth in Section 350 (2) makes the meaning of aggravated cruelty "even more confusing". However, the definition of "aggravated cruelty" and "cruelty" are separate and distinct. The fact that the word torture commonly refers to the causing of severe pain, whereas, Section 350 only requires physical pain in no way affects the definition of aggravated cruelty. Such is the case since they are mutually exclusive definitions and common meaning of a term is only relevant when the term is not defined by the statute.
Turning to defendant's additional objections, the term "extreme physical pain" uses ordinary terms to express ideas that find adequate interpretation in everyday usage and understanding (People v. Byron, supra; People v. Cruise, 48 N.Y.2d 419). The term "extreme physical pain" is not so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application (People v. Gordon, supra, citing Connally v. General Constr. Co., 269 U.S. 385, 391).
The next undefined phrase within the definition of aggravated cruelty is "especially depraved or sadistic manner". Considering the phrase as a whole, a person of ordinary intelligence would understand what conduct is prohibited by the statute. Depraved and sadistic have a common meaning in everyday usage. Describing these words with the intensive "especially" may be superfluous, but when considered together the combined words convey the clear intent to punish only the most serious and egregious conduct. The phrase spells out fairly the intent of the statute and effect will be given to that intent although it is not artistically expressed (McKinney's Cons. Laws of N.Y., Book 1,supra). One inartful word should not be the basis for declaring a statute unconstitutional since "condemned to the use of words, we can never expect mathematical certainty from our language" (People v. Illardo, 48 N.Y.2d 408, citing Grayned v. City of Rockford, 408 U.S. 104, 110). Recognizing reality, the Constitution therefore does not require impossible standards; it is enough that the language used convey sufficiently definite warnings as to proscribed conduct when measured by common understanding and practices (People v. Illardo, supra, 414; Miller v. California, 413 U.S. 15, 27-28, n 10, quoting Roth v. United States, 354 U.S. 476, 491-492; see Trio Distr. Corp. v. City of Albany, 2 N.Y.2d 690, 696). Courts are allowed to apply a reasonable construction to carry out legislative intent and to sustain the validity of a statute (McKinney's Cons. Laws of N.Y., Book 1, Statutes Section 362).
Accordingly, the defendant has failed to demonstrate beyond a reasonable doubt that Section 353-a Agric. Mkts. of the Agriculture and Markets Law is unconstitutionally vague and his motion to dismiss is denied.
The defendant next claims that even if the statute is not found to be unconstitutional for vagueness, it is unconstitutionally vague as applied in the current case. When determining whether or not a statute is unconstitutionally vague as applied, the actual conduct of the person attacking the statute must be considered and not with respect to hypothetical situations at the periphery of the statute's scope or with respect to the conduct of other parties who might not be forewarned by the broad language (see United States v. Powell, 423 U.S. 87, 93; United States v. Mazurie, 419 U.S. 544, 550; Parker v. Levy, 417 U.S. 733, 756).
Turning to the specific facts of our case, one witness at the Grand Jury proceeding testified to seeing the defendant "kick it [the dog] down the walkway" and then stated that defendant picked "it up and . . . threw it up against the brick wall." There is also additional testimony that the dog involved was a "relatively young dog, eight months old, 28 pounds, basset mixed breed". It is clear, in the court's opinion, that a person of ordinary intelligence would realize that the above activity of the defendant is precisely the sort of activity intended to be covered by the statute. Therefore, defendant's motion to dismiss based upon the unconstitutionality of the statute as applied is denied.